Nation v. United States Government

• Decision Date: 25 March 1981
• Docket Number: No. C-3-79-215.,C-3-79-215.
• Citation: 512 F. Supp. 121
• Parties: Victor NATION, Plaintiff, v. UNITED STATES GOVERNMENT et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

512 F. Supp. 121

Victor NATION, Plaintiff, v. UNITED STATES GOVERNMENT et al., Defendants.

No. C-3-79-215.

United States District Court, S. D. Ohio, W. D.

March 25, 1981.

COPYRIGHT MATERIAL OMITTED

Henry L. Gross, Dayton, Ohio, for plaintiff.

Joseph J. Chillinsky, Dayton, Ohio, for Sheriff of Marion County.

Robert J. Fogarty, Dayton, Ohio, for U. S. Government.

Richard L. Darst, Indianapolis, Ind., for Sheriff of Marion County.

DECISION AND ENTRY ON MOTIONS; PLAINTIFF ORDERED TO SUBMIT PROPOSED AMENDMENT WITHIN STATED PERIOD OF TIME; RULING ON PLAINTIFF'S MOTION TO AMEND DEFERRED; MOTION OF DEFENDANTS HALL AND UNITED STATES TO DISMISS SUSTAINED; MOTION TO TRANSFER SUSTAINED; CASE TRANSFERRED TO UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA; TERMINATION ENTRY

RICE, District Judge.

Three outstanding motions are pending in the captioned cause, each of which was submitted to this Court upon memoranda, oral hearing having been waived by the parties, to wit:

(1) the motion of the Defendant Sheriff of Marion County, Indiana, seeking an Order of Court transferring the action to the United States District Court for the Southern District of Indiana (2) the motion of the Defendants United States Government Bureau of Prisons and William E. Hall (Director, United States Marshals Service), seeking an Order of Court dismissing Plaintiff's Complaint for failure to state a claim upon which relief can be granted, for lack of subject matter jurisdiction, and for improper venue; and

(3) the motion of the Plaintiff, Victor Nation, seeking an Order of Court granting leave to amend his Complaint.

Based on the allegations in the unamended Complaint, Plaintiff's cause appears to have arisen on or about May 30, 1976, during a period in which Plaintiff was a prisoner in the care and custody of the United States Government (Compl. ¶ 10), the United States Marshals Service (Compl. ¶ 5), and/or the Sheriff of Marion County (Compl. ¶ 3). Plaintiff alleges that he was subjected to threats of violence and sexual assault during custody, "due to the negligence of the United States Marshal and the Sheriff of Marion County" (Compl. ¶ 6), and in violation of certain constitutional responsibilities of the United States Government (Compl. ¶ 10). Plaintiff predicates the liabilities of the Defendants on "Title VII of the Act known as `The Civil Rights Act of 1964,' as amended, 42 U.S.C. Section 2000(e), et seq." (equal employment opportunity), 42 U.S.C. Section 1983 (civil action for deprivation of rights), and the 8th and 14th Amendments. (Compl. ¶ 1) The Court's jurisdiction is invoked pursuant to 28 U.S.C. Section 1331 (federal question) and 28 U.S.C. Section 1343 (civil rights).

A. PLAINTIFF'S MOTION FOR LEAVE TO AMEND HIS COMPLAINT

Although a proposed amended complaint has not been submitted with the motion for leave to amend, Plaintiff indicates by memorandum that the amendment will further allege liability on the part of the Defendant United States Government under the Federal Tort Claims Act, 28 U.S.C. Section 2671 et seq., and thereby invoke this Court's jurisdiction pursuant to 28 U.S.C. § 1346(b) (United States as defendant in tort claim).

Defendants Sheriff of Marion County and the United States Government oppose Plaintiff's motion for leave to amend for reasons that: (1) the motion to amend is inadequately supported under the Federal Rules of Civil Procedure and Southern District of Ohio Rule 3.5.1; (2) the motion to amend is untimely, having been filed after the cutoff date set forth in Judge Rubin's Pretrial Order of August 30, 1979; (3) the motion to amend is inappropriate in view of Plaintiff's failure to respond to the prior motion to dismiss as required by Southern District of Ohio Rule 3.5.2; and (4) the Complaint as amended would not avoid the defects set forth in the prior motions for dismissal and transfer.

Although the Civil Rules do not expressly deal with the manner of presentation of amendments to pleadings, there is substantial authority for the proposition that Civil Rules 7(b)(1) and 15(a) impliedly require submission of the proposed amended pleading with the motion to amend. Glen Falls Ins. Co. v. Newton Lumber & Mfg. Co., 388 F.2d 66 (10th Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 821, 19 L.Ed.2d 873 (1968); Schwab v. Nathan, 8 F.R.D. 227 (S.D.N.Y.1948); Lilly v. United States Lines Co., 42 F.Supp. 214 (S.D.N.Y.1941); 3 Moore's Federal Practice, ¶ 15.12. But cf. Stanley Works v. Haeger Potteries, 35 F.R.D. 551 (N.D.Ill.1964) (motion to add parties by amendment allowed without presentation of proposed amendment). In the present case, it appears that Plaintiff's amendment will set forth a new and significantly different theory of liability against the United States Government (state law tort), and an additional jurisdictional basis requiring that certain additional facts be pleaded. 28 U.S.C. § 2675(a); Altman v. Connally, 456 F.2d 1114 (5th Cir. 1972) (exhaustion of administrative remedies on tort claim against United States required and must be pleaded). Therefore, Plaintiff's motion for leave to amend is neither "purely formal" nor "of a character which does not affect the issues." Disposition of said motion should be held in abeyance pending submission of the proposed amendment. Schwab, supra at 228. Otherwise, Plaintiff's motion for leave to amend adequately sets forth the "grounds therefor" and the "authorities relied upon." Civil Rule 7(b)(1); S.D.Rule 3.5.1.

Plaintiff's motion for leave to amend was filed on October 11, 1979, forty-one days after the September 1 cutoff date on "motions directed to pleadings," set forth in Judge Rubin's Preliminary Pretrial Order of August 30, 1979. However, in view of the statement of Plaintiff's counsel in memorandum that he was only advised by his client of the exhaustion of administrative remedies on the tort claim (pursuant to 28 U.S.C. § 2675(a)) subsequent to the filing of the original complaint, Plaintiff's motion is also construed as one seeking an extension of time within which to file a motion "directed to pleadings." The failure of Plaintiff's counsel to initially inquire into satisfaction of the § 2675(a) requirement constitutes, at worst, excusable neglect. Therefore, pursuant to Civil Rule 6(b), there being no indication of prejudice to Defendants herein due to the delay in filing the motion, said motion is considered timely despite its tardiness under the terms of the pretrial order.

Plaintiff did not respond to the Government's motion to dismiss prior to seeking leave to amend, and Plaintiff has not yet responded to date. S.D.Rule 3.5.2 provides that such failure "may be cause for the Court to grant the motion for dismissal as filed." However, if the motion for dismissal were to be granted, Plaintiff's subsequent motion for leave to amend would not thereby be precluded unless an incurable defect in Plaintiff's original complaint was the actual basis for dismissal. 3 Moore's Federal Practice ¶ 15.10. Thus, dismissal for failure to respond to the motion to dismiss would not alone render Plaintiff's motion for leave to amend inappropriate.

B. DEFENDANTS' MOTION TO DISMISS THE PLAINTIFF'S COMPLAINT

With respect to the motion to dismiss of the Defendants Hall and the United States Government, the Court agrees that no claim is stated under Title VII of the Civil Rights Act of 1964. No statement of prohibited discriminatory conduct can be reasonably construed from the allegations in the Complaint, much less discriminatory conduct in employment. Similarly, no claim is stated against the federal government or the federal officer, Hall (either in an individual or official capacity), under 42 U.S.C. § 1983. The liability provided in Section 1983 may be asserted only against state officers or persons acting under color of state law. Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963); McNally v. Pullizter Publishing Co., 532 F.2d 69 (8th Cir. 1976), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131. Although federal officers may be subjected to Section 1983 liability under a theory of joint conspiracy or participation with state officials in the deprivation of rights, a plaintiff pursuing such theory is (for purposes of a motion to dismiss):

bound to do more than merely state vague and conclusory allegations respecting the existence of a conspiracy. It is incumbent upon him to allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.

Peck v. United States, 470 F.Supp. 1003, 1008 (S.D.N.Y.1979) (quoting Powell v. Workmen's Compensation Bd., 327 F.2d 131, 137 (2d Cir. 1964)). In the present case, the unamended Complaint is not sufficiently specific with respect to the conduct of the Defendant Hall to state a "participation" claim against him under Section 1983.

Moreover, assuming that the mere subjection to threats of violence and sexual assault while in custody constitutes an otherwise actionable deprivation of 8th Amendment rights, but cf., Gray v. Creamer, 465 F.2d 179, 187 (3d Cir. 1972) (allegation of "extreme type of situation required to establish deprivation"); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) (threats of beating by prison officials sufficient when coupled with non-hygienic conditions); Penn v. Oliver, 351 F.Supp. 1292 (E.D.Va.1972) (actual assault by 3d person, if isolated, is insufficient), Plaintiff has nonetheless failed to state an independent claim against the Defendant Hall or the United States Government based directly on that constitutional provision (i. e., in a manner similar to that recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (allowing cause of action for damages against federal officers directly on 4th amend.)). See e. g., Chapman v. Pickett, 586 F.2d 22 (7th Cir. 1978) (recognizing action for damages...